Therefore, cognizance for criminal contempt could be taken by the Court by three methods namely, on its own motion, or on the motion of the Attorney General or the Solicitor General or on motion by any other person with the consent of the Attorney General or the Solicitor General. Therefore, the only course opens to a citizen for initiating proceedings for contempt where the Court does not take cognizance on its motion or where the Attorney General or the Solicitor General does not take action is to move for consent in writing of the Attorney General or the Solicitor General.
The question is, does it cast a duty upon the Attorney General or the Solicitor General to consider application for grant of such consent and whether the granting or non-granting of such consent is justiciable by the Court and if so whether the question of non-granting can be brought up in a rolled application moved by a person to bring it to the notice of the Court to take action suo motu and at the same time to consider whether in the same proceeding the action of the Attorney General or the Solicitor General in granting or not granting consent can be challenged or it must be always by an independent proceeding. The consent certainly is linked up with contempt proceedings.
Attorney General and Solicitor General of India in respect of Supreme Court occupy positions of great importance and relevance. Attorney General, though unlike England is not a member of the Cabinet yet is a friend of the Court, and in some respects acts as the friend, philosopher and guide of the Court. (See Art. 76 of the Constitution). Yet the Act vests him with certain discretions. All statutory discretions are justiciable in a society governed by the rule of law.
One must remember the remarks of Thomas Fuller- “Be you ever so high, the law is above you” and Supreme Court is the finder and interpreter of that law in cases of this nature with the assistance of Attorney General and in his absence or inability the Solicitor General.
It is well to remember what Burke said in the House of Commons in 1772 in connection with the motion for select committee for enquiry into the affairs of the East India Company and Clive. He said that when discretionary power is lodged in the hands of any man or class of men, experience proves that it will always be abused. Where no laws exist men must be arbitrary and very necessary acts of government will often be, in such cases, represented by the interested and malevolent as instances of wanton oppression (Clive of India – Nirad C. Chaudhry, page 381).
Times have changed here, the discretion is vested on a very high dignitary and a friend of the Court, yet it is subject to scrutiny.
Why this practice grew up of having the consent
This was explained in S. K. Sarkar v. V. C. Misra, [1981] 2 S.C.R. 331 where Sarkaria, J. speaking for the Court observed at page 339 of the report that the whole object of prescribing these procedural modes of taking cognizance under section 15 of the Act was to safeguard the valuable time of the High Court or the Supreme Court being wasted by frivolous complaints of contempt of court.
Frequent use of this suo motu power on the information furnished by an incompetent petition, may render these procedural safeguards provided in subsection (2), otiose. In such cases, the High Court may be well advised to avail of the advice and assistance of the Advocate-General before initiating proceedings. In this connection the Court referred to the observations of Sanyal Committee appointed to examine this question where it was observed:
“In the case of criminal contempt, not being contempt committed in the face of the court, we are of the opinion that would lighten the burden of the court, without in any way interfering with the sanctity of the administration of justice, if action is taken on a motion by some other agency. Such a course of action would give considerable assurance to the individual charged and the public at large. Indeed, some High Courts have already made rules for the association of the Advocate-General in some categories of cases at least . . . “
It was the practice that except where the Court feels inclined to take action suo motu parties were entitled to move only by the consent. If no justiciable reason was given in an appropriate case and such consent was refused can it be said that it would not be proper for the Court to investigate the same?
C. K. Daphtary and others v. O. P. Gupta and others, [1971]
The question of contempt of court came up for consideration in the case of C. K. Daphtary and others v. O. P. Gupta and others, [1971] Suppl. S.C.R. 76. In that case a petition under Article 129 of the Constitution was filed by Shri C.K. Daphtary and three other advocates bringing to the notice of Supreme Court alleged contempt committed by the respondents. There Supreme Court held that under Article 129 of the Constitution Supreme Court had the power to punish for contempt of itself and under Article 143(2) it could investigate any such contempt. Supreme Court reiterated that the Constitution made Supreme Court the guardian of fundamental rights.
Supreme Court further held that under the existing law of contempt of court any publication which was calculated to interfere with the due course of justice or proper administration of law would amount to contempt of court. A scurrilous attack on a judge, in respect of a judgment or past conduct has in our country the inevitable effect of undermining the confidence of the public in the Judiciary; and if confidence in Judiciary goes administration of justice definitely suffers.
In that case a pamphlet was alleged to have contained statements amounting to contempt of the Court. As the Attorney General did not move in the matter, the President of the Supreme Court Bar and the other petitioners chose to bring the matter to the notice of the Court. It was alleged that the said President and the other members of the Bar have no locus standi. Supreme Court held that the Court could issue a notice suo motu. The President of the Supreme Court Bar and other petitioners were perfectly entitled to bring to the notice of the Court any contempt of the Court.
The first respondent referred to Lord Shawcross Committee’s recommendation in U.K. that “proceedings should be instituted only if the Attorney- General in his discretion considers them necessary.” This was only a recommendation made in the light of circumstances prevailing in England. But that is not the law in India, Supreme Court reiterated. It has to be borne that decision was rendered on 19th March, 1971 and the present Act in India was passed on 24th December, 1971. Therefore, that decision cannot be of any assistance.
In U.K. there was report of Phillimore Committee in 1974. In India the reason for having the consent of the Attorney General was examined and explained by Sanyal Committee Report as noticed before. Our attention was drawn by Shri Ganguly to a decision of the Allahabad High Court in G.N. Verma v. Hargovind Dayal and others, A.I.R. 1975 Allahabad 52 where the Division Bench reiterated that Rules which provide for the manner in which proceedings for Contempt of Court should be taken continue to apply even after the enactment of the Contempt of Courts Act, 1971.
Therefore cognizance could be taken suo motu and information contained in the application by a private individual could be utilised. As we have mentioned hereinbefore indubitably cognizance could be taken suo motu by the Court but members of the public have also the right to move the Court. That right of bringing to the notice of the Court is dependent upon consent being given either by the Attorney General or the Solicitor General and if that consent is withheld without reasons or without consideration of that right granted to any other person under section 15 of the Act that could be investigated on an application made to the Court.
It was contended that neither the Attorney General nor the Solicitor General were proper or necessary parties. Reliance was placed on B. K. Kar v. The Chief Justice and his Companion Judges of the Orissa High Court and others, [1962] 1 S.C.R. 319. In that case under an order passed by the appellant, a Magistrate, one was put in possession of some property on October 14, 1955. In revision the order was set aside by the High Court on August 27, 1957 and the opposite party S applied on November 20, 1957 to the appellant for redelivery of possession. applied to the High Court for a review of its previous order and on November 25, 1957, the application was admitted and an interim stay was granted of the proceedings before the appellant.
A telegram addressed to a pleader, not the counsel for G, was filed along with the application. The appellant refused to act on this application and telegram and on November 27, 1957, he allowed the application of S for restitution. On November 28, 1957, a copy of the order of the High Court was received and thereupon the writ for redelivery of possession was not issued. The High Court convicted the appellant for contempt of court for passing the order for restitution on November 27, when the High Court had stayed the proceedings. The appellant appealed to Supreme Court and impleaded the Chief Justice and Judges of the High Court as respondents. Supreme Court held that the appellant was not guilty of contempt of court. It further held that in a contempt matter the Chief Justice and Judges of the High Court should not be A made parties and the title of such a proceeding should be “In re ….. the alleged contemnor”.
Mudholkar, J. speaking for the Court observed at page 321 of the report that the decision of Judges given in a contempt matter is like any other decision of those Judges, that is, in matters which come up before them by way of suit, petition, appeal or reference. Since that was the real position, Supreme Court observed that there was no warrant for the practice which was in vogue in India there, and which had been in vogue for over a century, of making the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter. The said observations were sought to be relied in aid of the proposition that where the decision of the Attorney General or the Solicitor General was involved, they were not necessary or proper parties.
Reliance on this decision for this purpose is entirely misconceived. Where an appeal comes to Supreme Court, which is a judicial decision, the Judges who rendered the decision are not necessary parties. There is no lis between a suitor and a judge in a judicial adjudication. But the position is entirely different where there is suitor claiming the exercise of a statutory right in his favour which he alleges is hampered by an official act of a named official in the Act. In respect of justiciability of that act of the official there is a lis and if that lis is inter- linked with the proceeding for contempt, there is warrant for making him party in that proceeding though the prayers and the notice must be issued differently.
As mentioned hereinbefore in the case of S.C. Sarkar v. V.C. Misra, Supreme Court had observed that it may well be advices to avail of the advised and assistance of the Advocate General before initiating proceedings. Shri Ganguly appearing for the Solicitor General sought to urge before us that advice and assistance could not be compelled by a suitor. This cannot be agreed to. The statute gives a right to a suitor to move the Court in one of the contingencies for contempt or bring to the notice of the Court the contempt with the advice and assistance of the Attorney General or the Solicitor General. If such right is not considered on relevant materials then that action is justiciable in an appropriate proceeding for contempt.
Reference may be made to the case of Attorney General v. Times Newspapers Ltd., [ 1973] 3 All E.R. 54. In that case a drug company began to- make and sell in the United Kingdom a sedative which contained the drug thalidomide. Lord Morris observed in that case that the purpose and existence of courts of law is to preserve freedom within the law for all well disposed members of the community and anything which hampers the administration of law should be prevented but it does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a desire to bring about a relief of some distress which was a matter of public sympathy and concern. Dealing with this aspect Lord Cross of Chelsea has observed that ‘contempt of court’ means an interference with the administration of justice and it is unfortunate that the offence should continue to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court. ‘Justice’ he said is an ambiguous word.
When we speak of the administration of justice we mean the administration of the law, but often the answer which the law gives to some problem is regarded by many people as unjust. Lord Cross further observed that there must be no prejudging of the issues in a case is one thing. To say that no one must in any circumstances exert any pressure on a party to litigation to induce him to act in relation to the litigation in a way in which he would otherwise not choose to act is another and a very different thing.
Lord Cross at page 87 of the report observed as follows: “In conclusion I would say that I disagree with the views expressed by Lord Denning MR and Phillimore LJ (1973 1 All E.R. 815) as to the ‘role’ of the Attorney-General in cases of alleged contempt of court. If he takes them up he does not do so as a Minister of the Crown ‘putting the authority of the Crown behind the complaint’-but as ‘amicus curiae’ bringing to the notice of the court some matter of which he considers that the court shall be informed in the interests of the administration of justice.
It is, I think, most desirable that in civil as well as in criminal cases anyone who thinks that a criminal contempt of court has been or is about to be committed should, if possible, place the facts before the Attorney-General for him to consider whether or not those facts appear to disclose a contempt of court of sufficient gravity to warrant his bringing the matter to the notice of the court. Of course, in some cases it may be essential if an application is to be made at all for it to be made promptly and there may be no time for the person affected by the ‘contempt’ to put the facts before the attorney before moving himself.
Again the fact that the attorney declines to take up the case will not prevent the complainant from seeking to persuade the court that notwithstanding the refusal of the attorney to act the matter complained of does in fact constitute a contempt of which the court should take notice. Yet, again, of course, there may be cases where a serious contempt appears to have been committed but for one reason or another none of the parties affected by it wishes any action to be taken in respect of it.
In such cases if the facts come to the knowledge of the attorney from some other source he will naturally himself bring the matter to the attention of the court. Lord Cross has noticed in his speech that if the Attorney General declines to take up the case, it will not prevent the complainant from seeking to persuade the Court that notwithstanding refusal of the Attorney General to act, the matter complained of does, in fact, constitute a contempt of which the Court should take notice. But that does not derogate the rights of the individual to move the Court. See the observations of Lord Reid.
In Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. etc. v. Union of India and others, [ 1985] 1 S.C.C. 641, the observations of the aforesaid decision in Thalidomide case were relied upon. Reliance was also placed on the observations of the House of Lords in Gouriot and others v. H.M. Attorney General, [1978] Appeal Cases 435. There it held the initiation of litigation and the determination of the question whether it is a proper case for the Attorney General to proceed in, is a matter entirely beyond the jurisdiction of that or any other Court. It is a question which the law has made, to reside exclusively in the Attorney General.
Reference
Excerpt from the Judgment P.N. Duda v. P. Shiv Shankar (1988)